This short contribution reports on two events held in Berlin and Leuven on the edited book Global Constitutionalism from European and East Asian Perspectives (Takao Suami, Anne Peters, Mattias Kumm and Dimitri Vanoverbeke, eds., Cambridge University Press 2018).

Li assessed China’s
strategies on the globalization trend in terms of both domestic and
international law. At the domestic level, while the previous constitutional amendments
were relatively inspired by liberalism such the market economy and human
rights, the 2018 constitutional amendment reflects President Xi Jinping’s
thought on socialism with Chinese characteristics for a new era. At the
international level, China’s remarkable proposals on global governance were
introduced including WTO reforms, Silk Road Economic Belt and 21st
Century Maritime Silk Road, “Community of shared future for mankind/common
destiny”.

Hyuck-Soo YOO (Kanagawa University, Japan),Is the
Constitutionalism Globalized or Do Constitutionalisms Compete Each Other? With
an Introduction of Korean Scholarship on Confucianism

Yoo posed an unsolvable theme
of liberal trade-off: how much and how long can “for the people” justify
to deny and delay “of and by the people”? He asserts that the expectation
that if “for the people” were satisfied in a reasonable degree, the step of “of
and by the people” will come eventually, has proved disappointing everywhere,
except for very rare cases. Therefore, Yoo argues, the rights and welfare based
on freedoms of individual are a starting point and final goal in the discourse
of global constitutionalism. For that purpose, Confucian relational ontology
(Interbeing) has an affinity to Levinas’ ethics of responsibility.

Kazuyori ITO (Hokkaido University), Freedom of the Order, and Freedom by the Other: Identifying the Goal of Global Constitutionalism

Ito’s paper scrutinized the
discourse of constitutionalization in international economic law, which puts emphasis
in the constraint on the exercise of sovereign power. He asserts that the
constitutional legitimacy should be assessed in terms of the extent of how much
the freedom is recognized to “the other”. In this process, mutual respect and
equal footing of moral personality through communication with “the other” can
cause a significant change in our recognition. For Ito, global
constitutionalism’s goal is to protect people from various types of threats to
their freedom in the global context, and consequently, every political unit
should show equal concern and respect to all relevant views presented by the
other.

Panel II: Sharing Common Attitudes Towards Global
Constitutionalism?

Moderator: Kriszta KOVÁCS (WZB Berlin, Germany)

Commentator: Matthias KUMM

Yoon Jin SHIN (Seoul National University, South Korea), Cosmopolitanising Rights Practice: The Case of South Korea

Shin empirically studied the cosmopolitanising
constitutional rights practices in Korea. First, for the “vertical”
relationship between international and constitutional law, the Korean
Constitutional Court proactively adopts international human rights law as a
substantive standard of rights review while maintaining the format of
constitutional review. Second, in the “horizontal” comparison with foreign
constitutional law, the recent Korean judicial practices conduct the expansive,
non-cherry-picking comparative inquiries. Third, in the “internal” encounter of
tradition and culture with constitutional rights, the concept of “living
tradition” and the proportionality test are taken in Korean constitutional law
to balance local cultures and universal rights.

Against the preeminent
position of China in the contemporary world, Obata addressed the Chinese
approach to global constitutionalism in comparison with Japanese worldviews. His
presentation started with Japanese historic errors in the project of “Greater East Asia Co-Prosperity Sphere” in the Pacific
War. Such a historical lesson has deep implications for evaluating
contemporary “version-upgrade” of the “Eastphalian” concept of sovereignty in
Chinese and Japanese diplomatic and foreign policies. Indeed, China’s “Belt and Road initiative”
and Japan’s “Free and Open Indo-Pacific Strategy” share the character of
functional multilateralism and conservativism on State sovereignty. Obata thus concludes that East
Asia realities still vindicate functionalism, mutual reliance in economics
based on peaceful co-existence, promotion of functional, sometimes fragmented,
norms embedding values.

Ejima’s presentation was a normative attempt to argue
that there is an alternative model to describe the present situation of global
constitutionalism. Her model is called the “circulatory” process based on pluralistic
and non-hierarchical interactions of actors. In this process, domestic and international
actors are continuingly and repeatedly interacted for “never forgetting human
rights violations”. At the domestic sphere, not only national authorities
(legislature, executive and judiciary) but also other actors including media,
NGOs and companies mutually engage in the protection of human rights. At the
international level, the decisions and recommendations of international
organizations and treaty bodies trigger the dialogue with domestic actors.

Panel III: Futures of Global Constitutionalism:
Towards a Research Agenda

Global
constitutionalists presuppose that the constitutionalist trinity (i.e. the rule of law, human rights and
democracy) exists (Thesis 1), that it can be known globally (Thesis 2), and that it can be
communicated globally (Thesis 3). Negishi argued that the
dialogue between European and East Asian scholars in the Edition rather reveals
the remnant of Gorgias in global constitutionalism, the enigmas of “existence”
(Anti-Thesis 1), “cognition” (Anti-Thesis 2) and “language” (Anti-Thesis 3). To
overcome Gorgiasian radical relativism, Negishi
proposed a phenomenological approach,
which eventually seeks a certain form of universality on “existence” (Thesis 1)
in the sense of inter-subjectivity
through mutual re-“cognition”
(Thesis 2) and “language” communication (Thesis 3).

Hajime YAMAMOTO (Keio University, Japan), Characteristics of Contemporary Japanese Constitutionalism: Its Distance from Chinese One

In his presentation, Yamamoto
points out three aspects of Japanese constitutionalism in terms of global
constitutionalism. The first observation is that even in the same region the
difference in regime is essential in relation to what attitude global
constitutionalism takes. The second important element relates to the functions
of constitutionalism in different countries, that is a transformative function
or a static one. The third important point is how traditional social aspects
contribute or to hinder the establishment of constitutionalism deeply in
society. Consequently, global constitutionalism discourse must take into
consideration the diversity of constitutionalism in function in different
countries in order to create good links of global constitutionalism and
domestic constitutionalism in each country.

Kondo examines how the
prospective agendas (battlefronts) on global constitutionalism should be
understood in terms of notions of effectiveness and normativity. In accordance
with the Edition’s presupposition that global constitutionalism has a dual
aspect, he categorizes effectiveness and normativity, which are in the
trade-off relations. On the one hand, the broader global constitutionalism’s
description is, the more effective global constitutionalism becomes. On the
other hand, the thicker global constitutionalism’s prescription is, the more
normative global constitutionalism becomes. Given such mutually-contradictory
demands, global constitutionalists are required to keep the middle position by
setting the limits on derogation.

Symposium on Global Constitutionalism: Current and Future Research Agendas

Suami insisted that there
are not only negative aspects but also positive aspects to continue the
discussions on global constitutionalism including (1) development of international
organizations, (2) fragmentation of international law, (3) indispensability of
international cooperation, (4) progress of individualization of international
law, (5) emergence of illiberal democracy, (6) progress of constitutionalism in
Asia. Towards the maturation of global constitutionalism, according to Suami, the
following issues should be deeply discussed in the discourse of global
constitutionalism: (1) substance of constitutionalism beyond the state, (2) (the
radical aspect of) democracy and global constitutionalism, (3) expanding
targets of global constitutionalism and (4) peace.

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